Brown v. Warren et al
Filing
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OPINION AND ORDER adopting Magistrate Judge J. Clay Fullers Non-Final Report and Recommendation 6 . Plaintiffs Objections 8 and Amended Objections 9 to Magistrate Judge J. Clay Fullers Non-Final Report and Recommendation 6 are OVERRULED. Plain tiffs claims against Defendants Major Hammons, Major Williams, Lieutenant Tankersley, and Sergeant Holt are ALLOWED TO PROCEED and Plaintiffs claims against Defendants Sheriff Neil Warren, Colonel Greer, and Sheriffs Office Staff (Classification Comm ittee) are DISMISSED. Plaintiff shall, at all times during the pendency of this action, keep the Court advised of his current address. Failure to do so may result in dismissal of this action. It is further ordered that this action is returned to the Magistrate Judge for further proceedings, including the issuance of an Order regarding service of process. Signed by Judge William S. Duffey, Jr on 10/4/16. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ROY L. BROWN, a/k/a ROY
HICKS,
Plaintiff,
v.
1:16-cv-1057-WSD-JCF
SHERIFF NEIL WARREN, COL.
GREER, MAJOR HAMMONS,
MAJOR WILLIAMS,
LT. TANKERSLEY, SGT. HOLT,
SHERIFF’S OFFICE STAFF
(Classification Committee),
Defendants.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge J. Clay Fuller’s
Non-Final Report and Recommendation [6] (“R&R”), recommending that Plaintiff
Roy L. Brown’s (“Plaintiff”) claims against Major Hammons, Major Williams,
Lieutenant Tankersley, and Sergeant Holt be allowed to proceed, and that
Plaintiff’s remaining claims be dismissed. Also before the Court are Plaintiff’s
Objections [8] and Amended Objections [9] to the R&R.
I.
BACKGROUND
On February 25, 2016, Plaintiff, proceeding pro se, filed his Civil Rights
Complaint Pursuant to 42 U.S.C. § 1983 [1] (“Complaint”), naming as defendants
Sheriff Neil Warren, Colonel Greer, Major Hammons, Major Williams, Lieutenant
Tankersley, Sergeant Holt, and unnamed members of the Classification Committee
at Cobb County Adult Detention Center (“Detention Center”), where Plaintiff is
confined. All of the named defendants, other than Sheriff Neil Warren, work at the
Detention Center.
Plaintiff alleges that, on September 10, 2015, he was released from the
Detention Center’s medical unit and “was placed in 5 North 1 dorm which is a
lockdown area for people with disciplinary sanctions and awaiting disciplinary
hearings and sanctions for their acts committed, and P.C. which is Protective
Custody.” ([1] at 3-4). Plaintiff alleges that he should not have been placed in
lockdown because he does not have disciplinary infractions or charges. Plaintiff
notified Colonel Price, the commanding officer of the Detention Center, who
“issued ‘orders’” that Plaintiff should not be “locked down with [his] privileges
being restricted and taken.” ([1] at 4). Plaintiff claims that Defendants Major
Hammons, Major Williams, Lieutenant Tankersley, and Sergeant Holt failed to
follow the commanding officer’s instruction, and that, since September 10, 2015,
he has been confined in lockdown for twenty-three (23) hours per day.
([1] at 4, 6). Plaintiff seeks $25 million in compensation for “1) deliberate
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indifference, 2) cruel and unusual punishment, 3) pain and suffering, 4) mental
anguish and stress, 5) punitive damages, 6) declamation [sic] of character
[and] . . . 8) discrimination.” ([1] at 4-5).
On June 6, 2016, the Magistrate Judge issued his R&R, recommending that
Plaintiff’s claims against Major Hammons, Major Williams, Lieutenant
Tankersley, and Sergeant Holt be allowed to proceed, and that his remaining
claims be dismissed. On June 16, 2016, Plaintiff filed his Objections to the R&R,
asserting that his claims against Sheriff Neil Warren, Colonel Greer and the
Classification Committee “should not be dismissed because they are all equally
respons[i]ble for their actions as decision makers.” ([8] at 2). On June 28, 2016,
Plaintiff filed his Amended Objections, asserting the same objection in identical
language.
II.
LEGAL STANDARDS
A.
Frivolity Review Under 28 U.S.C. § 1915A
A federal court must screen “a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or employee of a governmental
entity.” 28 U.S.C. § 1915A(a). The Court is required to dismiss the complaint if it
is “frivolous, malicious, or fails to state a claim upon which relief may be granted,”
or if it “seeks monetary relief from a defendant who is immune from such relief.”
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28 U.S.C. § 1915A(b). A claim is frivolous, and must be dismissed, where it
“lacks an arguable basis either in law or in fact.” Miller v. Donald, 541 F.3d 1091,
1100 (11th Cir. 2008).
Plaintiff filed his Complaint pro se. “A document filed pro se is to be
liberally construed, and a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation marks
omitted). Nevertheless, a pro se plaintiff must comply with the threshold
requirements of the Federal Rules of Civil Procedure. See Beckwith v. Bellsouth
Telecomms. Inc., 146 F. App’x 368, 371 (11th Cir. 2005). “Even though a pro se
complaint should be construed liberally, a pro se complaint still must state a claim
upon which the Court can grant relief.” Grigsby v. Thomas, 506 F. Supp. 2d 26,
28 (D.D.C. 2007). “[A] district court does not have license to rewrite a deficient
pleading.” Osahar v. U.S. Postal Serv., 297 F. App’x 863, 864 (11th Cir. 2008).
B.
Magistrate Judge’s Report and Recommendation
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1);
Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S.
4
1112 (1983). A district judge “shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). With respect to those findings and
recommendations to which objections have not been asserted, the Court must
conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984).
Plaintiff objects that his claims against Sheriff Neil Warren, Colonel Greer,
and the Classification Committee “should not be dismissed because they are all
equally respons[i]ble for their actions as decision makers.” ([8] at 2). The Court
conducts a de novo review of the Magistrate Judge’s conclusion on this issue.
III.
DISCUSSION
“The minimum requirements of due process for prisoners facing disciplinary
action . . . are (1) advance written notice of the charges; (2) a written statement of
the reasons for the disciplinary action taken; and (3) the opportunity to call
witnesses and present evidence, when consistent with institutional safety and
correctional goals.” Bass v. Perrin, 170 F.3d 1312, 1318 (11th Cir. 1999). These
requirements apply where a prisoner is deprived of a constitutionally protected
liberty interest, such as a deprivation resulting in an “atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.”
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Kirby v. Siegelman, 195 F.3d 1285, 1290-91 (11th Cir. 1999).
The Magistrate Judge found that Plaintiff’s alleged placement in lockdown
for twenty-three (23) hours per day, for at least five (5) months, may constitute “an
atypical and significant hardship” that requires due-proces protection. The
Magistrate Judge concluded that Plaintiff states a claim for relief, sufficient to
withstand frivolity review, because Plaintiff alleges that he did not receive any
process with respect to his placement in lockdown. The Court finds no plain error
in the Magistrate Judge’s determinations. See Beene v. Hammer, No. 3:02-cv-158,
2003 WL 21673456, at *5 (N.D. Tex. July 15, 2003) (“[T]he alleged six-month
lock-down period experienced by petitioner may rise to the level necessary for due
process protection. . . . [T]he allegations suffice to survive summary dismissal at
this screening stage.”); see Williams v. Fountain, 77 F.3d 372, 374 n.3 (11th Cir.
1996) (noting that “a full year of solitary confinement” constitutes an “atypical and
significant hardship,” and thus a “liberty deprivation” that entitles plaintiff “to due
process”).
The Magistrate Judge recommends dismissing Plaintiff’s claims against
Sheriff Neil Warren, Colonel Greer, and unnamed members of the Classification
Committee, because “Plaintiff has not alleged any wrongdoing” on their part.
(R&R at 6-7). Plaintiff objects to this recommendation on the grounds that these
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defendants “are all equally respons[i]ble for their actions as decision makers.”
([8] at 2). Plaintiff’s Complaint does not alleged specific facts tying these
defendants to the actions about which Plaintiff complains. See
Anderson v. Chapman, 604 F. App’x 810, 813 (11th Cir. 2015) (“[F]or any of the
defendants to be held liable in damages, [plaintiff] would have to prove that the
defendant personally participated in the denial [of due process].”);
Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008) (“[A] complaint will be
held defective . . . if [it] fails to connect the defendant with the alleged wrong.”);
see also Brannon v. Thomas Cty. Jail, 280 F. App’x 930, 933 (11th Cir. 2008).
The Court thus agrees with the Magistrate Judge that Sheriff Neil Warren, Colonel
Greer, and unnamed members of the Classification Committee should be dismissed
from this action.1
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If Plaintiff seeks to bring this action against Sheriff Neil Warren, Colonel
Greer, and the Classification Committee in their official capacities, his claims also
fail. An official-capacity suit is, “in all respects other than name, to be treated as a
suit against the entity [of which the defendant is an agent].” Kentucky v. Graham,
473 U.S. 159, 166 (1985). “To prevail under § 1983 against that entity, a plaintiff
must show that the entity itself was the ‘moving force’ behind his constitutional
deprivation, and the only way to do that is by identifying a ‘policy or custom of the
entity that played a part in the violation of federal law.’” Fischer v. Ellegood, 238
F. App’x 428, 431 (11th Cir. 2007) (quoting Kentucky, 473 U.S. at 166). Even
construing Plaintiff’s Complaint liberally, it fails to allege his injury was caused by
an “officially promulgated” policy or an “unofficial custom . . . shown through the
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IV.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge J. Clay Fuller’s
Non-Final Report and Recommendation [6] is ADOPTED.
IT IS FURTHER ORDERED that Plaintiff’s Objections [8] and Amended
Objections [9] to Magistrate Judge J. Clay Fuller’s Non-Final Report and
Recommendation [6] are OVERRULED.
IT IS FURTHER ORDERED that Plaintiff’s claims against Defendants
Major Hammons, Major Williams, Lieutenant Tankersley, and Sergeant Holt are
ALLOWED TO PROCEED.
IT IS FURTHER ORDERED that Plaintiff’s claims against Defendants
Sheriff Neil Warren, Colonel Greer, and Sheriff’s Office Staff (Classification
Committee) are DISMISSED.
IT IS FURTHER ORDERED that Plaintiff shall, at all times during the
pendency of this action, keep the Court advised of his current address. Failure to
do so may result in dismissal of this action.
IT IS FURTHER ORDERED that this action is returned to the Magistrate
repeated acts of a final policymaker.” Molette v. Georgia, 469 F. App’x 766, 768
(11th Cir. 2012).
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Judge for further proceedings, including the issuance of an Order regarding service
of process.
SO ORDERED this 4th day of October, 2016.
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